Department of Justice says Seattle not violating consent decree on police use of force - new burden of proof language no impediment to effective discipline

After an arbitrator overturned the termination of a Seattle police officer accused of punching a handcuffed suspect (award), the District Court judge overseeing a consent decree concerning police use of force issued an Order to Show Cause questioning whether the City was meeting its obligation to maintain effective compliance with the terms of the decree. Specifically, the Court requested a response on several questions, including:

Whether the events surrounding the [Disciplinary Review Board's] decision to reinstate an SPD officer who punched a hand-cuffed subject who was sitting in a patrol car, and the new CBA's rejection of aspects of the Accountability Ordinance—including those aspects that would have replaced the DRB with the PSCSC and provided for a different standard of review—should lead the court to conclude that the City and the SPD have failed to maintain full and effective compliance with the Consent Decree during Phase II?

The US Department of Justice has responded, (here) expressing its position that the particulars of an individual case, which took place prior to the time designated to evaluate compliance, could not demonstrate the City's noncompliance.  It noted that the City had taken action against the officer, and that "one incident is not necessarily reflective of a system-wide problem" and that the Department's rules and systems designed to catch and correct individual issues appeared to be working as intended.

It also noted that while it had initially expressed concern about the standard of review for disciplinary actions included in the most recent cba, after further review it found no basis to challenge it.

 The DOJ noted that prior to 2008 the applicable cba provided that discipline would be imposed only with just cause, but did not specify any burden of proof to be used.

In 2008, a new cba added language creating a presumption of termination for officers found to have engaged in dishonesty, but also provided that the Department must prove dishonesty "by clear and convincing evidence."

In preparation for a new cba in 2018, the City submitted proposed language to the Court, and the Court asked for the DOJ's opinion. The DOJ asserted that the addition of a "clear and convincing" burden "without any clear basis" could potentially undermine public confidence. It later noted, however, that this suggestion was in error, since "the use of the clear and convincing standard (1) was not new; and (2) had a clear basis for inclusion." In any case, however, the final 2018 cba language on discipline eliminated specific reference to a particular standard. The new language read:

The standard of review and burden of proof in  labor arbitration will be consistent with established principles of labor arbitration. For example, and without limitation on other examples or applications, the parties agree that these principles include an elevated standard of review (i.e. - more than a preponderance of the evidence) for termination cases where the alleged offense is stigmatizing to a law enforcement officer, making it difficult for the employee to get other law enforcement employment.

After reviewing prior arbitration awards furnished by the City (Exhibits B,C,D,E,F, and G) DOJ found that this heightened standard had been in effect for some time as part of the "common law of arbitration" and concluded that the new language would not make disciplining officers more difficult than in the past and presented no conflict with the consent decree.

Labor Arbitration in the News

Arbitrator upholds termination of police officer involved in shooting


The Herald of Everett, Wash. reports that Arbitrator Janet Gaunt has upheld the termination of a police officer involved in a shooting, concluding that the City had just cause for the termination. Firing of former Everett cop Troy Meade upheld. The Arbitrator’s award can be found here. The officer upheld the City’s determination that the officer had violated policy when he shot an intoxicated individual he believed was reversing his vehicle in the direction of the officer. According to the Arbitrator “Department policy prohibits shooting into a moving vehicle unless there is no other reasonable means of protecting an officer or a third party in imminent threat of serious injury or death. Officer Meade did have a reasonable alternative, i.e., protective cover readily available behind an adjacent SUV. By failing to use that alternative, Meade violated applicable provisions of the EPD’s Use of Force Policy and caused a civilian death that could have been avoided.”


Deputy Sheriffs improperly denied overtime opportunities


Arbitrator Raleigh Jones has concluded that Milwaukee County modified past practice and unilaterally restricted the opportunities for Deputy Sheriffs to work overtime at County Correctional facilities. jsonline.com Sheriff's deputies denied overtime work, owed back pay, arbitrator finds. Arbitrator Jones’ award can be found here. The facilities were staffed with both Deputy Sheriffs and lower paid corrections officers. While voluntary overtime opportunities had been shared between these two titles based on seniority, beginning in January 2011 the County decided to limit opportunities for voluntary overtime to corrections officers. It relied on the management rights provision of its cba with the Deputy Sheriffs’ Association in support of its actions. Arbitrator Jones concluded that that provision gave the Sheriff the right to determine whether overtime was necessary, but that the contract was ambiguous concerning the method of distribution of those opportunities. In light of that ambiguity the arbitrator looked to the parties’ past practice. Finding that the opportunities had long been shared between the two titles the Arbitrator concluded that “The Employer’s decision to end the practice … violated Section 3.02(3) (a) as those provisions have come to be interpreted by the parties themselves.”


No collateral estoppel based on NLRB’s dismissal of unfair labor practice charge


Graphic Communications Conference, IBT, Local 140 prevailed in an arbitration against the Los Angeles Times arising from a warning issued to an employee who was also a union official, allegedly because of his union activities. ARBITRATOR RULES AGAINST L.A. TIMES CITING ANTI- UNION ANIMUS. Arbitrator Fred D'Orazio's award can be found here . Grievant had filed a charge with the NLRB containing the same allegations. The charge was initially deferred to the grievance/arbitration procedure, but the deferral was subsequently rescinded and an investigation undertaken. The Regional office found insufficient evidence to support the charge and determined that further proceedings were unwarranted. At the arbitration the employer argued that in light of the NLRB’s action the grievance should be dismissed under the doctrines of res judicata and collateral estoppel. The Arbitrator rejected this defense, noting that the matter had not been “actually litigated”, a prerequisite to application of those doctrines. Proceeding to the merits, the Arbitrator found that the written warning was motivated by anti-union animus, in violation of the contract.


Employees terminated for claimed fraud ordered reinstated


The Hartford Courant reports that 40 of 103 employees of the State of Connecticut who had been terminated for claimed improper receipt of disaster relief after Tropical Storm Irene have been found entitled to reinstatement. D-SNAP: Many State Employees To Get Jobs Back As No Fraud Found. Arbitrator Susan Meredith concluded that the discipline imposed was too severe, and that many of the employees had committed mistakes, but not fraud.